BOARD OF SUP'RS v. Bd. of Zoning Appeals

Decision Date05 November 2004
Docket NumberNo. 032390.,032390.
PartiesBOARD OF SUPERVISORS OF FAIRFAX COUNTY v. BOARD OF ZONING APPEALS OF FAIRFAX COUNTY, et al.
CourtVirginia Supreme Court

John E. Foster, Assistant County Attorney (David P. Bobzien, County Attorney; J. Patrick Taves, Deputy County Attorney; Jan L. Brodie, Senior Assistant County Attorney, on briefs), for appellant.

John L. McBride; Brian M. McCormack (Susan E. Grogan; Maynard L. Sipe; Vanderpool, Frostick & Nishanian; Dunn, McCormack & MacPherson, on briefs), for appellees.

Present: All the Justices.

HASSELL, Chief Justice.

The primary issue we consider in this appeal is whether a county has standing to challenge the decision of a board of zoning appeals.

I.

James L. Hickerson owns a parcel of land in Fairfax County. The parcel is subject to a zoning classification of R-3 District (Residential District, Three Dwelling Units/Acre). The minimum lot requirement in this zoning classification is 10,500 square feet, and the minimum lot width requirement is 80 feet. A single-family dwelling is on the parcel which contains 24,449 square feet of land in excess of the R-3 zoning classification requirement for a single-family dwelling.

In 1936, a former owner subdivided the parcel from a larger tract of land. The subdivision was not created in compliance with the County's subdivision ordinance in effect in 1936 that required the County to approve the metes and bounds description of the subdivision.

Hickerson acquired his parcel in 1964. In 2002, he desired to subdivide that parcel into two lots, but one of the proposed lots would have a minimum lot width of 20 feet, in violation of the County's zoning ordinance.

Hickerson sought a variance from the Board of Zoning Appeals (BZA) that would permit him to subdivide his parcel into the two lots and construct a house on each lot. He essentially asserted in his application that the strict application of the zoning ordinance would produce "undue hardship" because the exceptional size of his parcel precludes the maximum use of his land as provided by the R-3 zoning classification, and he could not construct two new homes on the proposed lots without a variance.

The BZA granted the requested variance on the basis that the request satisfied the requisites enumerated in Code § 15.2-2309(2). The Board of Supervisors filed a petition for a writ of certiorari in the circuit court challenging the decision of the BZA. The circuit court held that the Board of Supervisors had standing to challenge the decision of the BZA, but the court approved the BZA's decision to grant the variance. The Board of Supervisors appeals the circuit court's judgment approving the BZA's decision, and the BZA and Hickerson assign cross-error to that portion of the court's judgment that concluded that the Board of Supervisors has standing to maintain this proceeding.

II.
A.

Code § 15.2-2314 states in relevant part:

"Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the locality, may file with the clerk of the circuit court for the county or city a petition specifying the grounds on which aggrieved within 30 days after the final decision of the board."

The BZA and Hickerson assert that the County lacks standing to challenge the decision to grant the variance because the County is not aggrieved within the intendment of this statute. We disagree.

Pursuant to Code § 15.2-2314, any person who is aggrieved by any decision of a BZA may file a petition with a circuit court challenging that BZA decision. The word "person" includes legal entities and, therefore, a local governing body qualifies as a "person" with authority to petition the circuit court to challenge a BZA decision. Code § 1-13.19. The BZA and Hickerson do not dispute that the Board of Supervisors is a person within the meaning of this statute. Code § 15.2-1401 states in relevant part that "all powers granted to localities shall be vested in their respective governing bodies." Code § 15.2-2240, which requires localities to adopt ordinances regulating subdivision and development of land, states: "The governing body of every locality shall adopt an ordinance to assure the orderly subdivision of land and its development." Code § 15.2-2280 authorizes localities to enact zoning ordinances that regulate, restrict, prohibit, or determine the use of land, buildings, structures or other premises:

"Any locality may, by ordinance, classify the territory under its jurisdiction or any substantial portion thereof into districts of such number, shape and size as it may deem best suited to carry out the purposes of this article, and in each district it may regulate, restrict, permit, prohibit, and determine the following:
"1. The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses;
"2. The size, height, area, bulk, location, erection, construction, reconstruction, alteration, repair, maintenance, razing, or removal of structures;
"3. The areas and dimensions of land, water, and air space to be occupied by buildings, structures and uses, and of courts, yards, and other open spaces to be left unoccupied by uses and structures, including variations in the sizes of lots based on whether a public or community water supply or sewer system is available and used; or
"4. The excavation or mining of soil or other natural resources."

Code § 15.2-2308 requires that every locality that has enacted a zoning ordinance establish a board of zoning appeals.

As demonstrated by these statutes, a board of supervisors has a strong interest in the proper and uniform application of its zoning ordinances. The United States Supreme Court has observed, and we agree, that a local government's exercise of its zoning authority is "one of the most essential powers of government, one that is the least limitable." Hadacheck v. Sebastian, 239 U.S. 394, 410, 36 S.Ct. 143, 60 L.Ed. 348 (1915). Without question, improper decisions of a board of zoning appeals can impede the uniform and proper application of zoning ordinances and the grant of improper variances can undermine and even destroy the very goals that the zoning classifications were enacted to achieve.

Code § 15.2-1404 grants a local governing board the broad power to institute actions in its own name with regard to "all matters connected with its duties." One legislative purpose manifested in this statutory grant is to enable the local governing body to ensure compliance with its legislative enactments, including its zoning ordinance. If the local governing body does not have such authority, that body's legislative acts could be effectively nullified by a BZA, and the governing body would be powerless to take action to require compliance with its own ordinances. Moreover, a holding that would preclude a board of supervisors from seeking judicial review of a decision of a board of zoning appeals would enable a board of zoning appeals to exercise power arbitrarily. Certainly, the General Assembly did not contemplate such an untenable result.

We hold that a board of supervisors is an aggrieved person within the meaning of Code § 15.2-2314, and thus has standing to challenge a decision of a BZA. This holding is consistent with the majority rule adopted by our sister states.

The Supreme Court of Alabama construed a statute substantially similar to Code § 15.2-2314, and that court concluded that a governing body has standing to challenge the decision of its zoning board. That court observed:

"A zoning board acts independently of the municipal council that enacts the [zoning] ordinances. . . . Additionally ... the improper granting of variances will not necessarily be challenged by many aggrieved parties because they might not have the resources for litigation. Without standing to challenge the arbitrary granting of variances, the municipality is unable to prevent the improper application of its ordinances."

Ex parte City of Huntsville, 684 So.2d 123, 126 (Ala.1996).

The Supreme Court of Nevada considered whether a municipality was aggrieved by a decision of a zoning board and, therefore, had standing to appeal. Concluding that a municipality has standing, the court noted:

"Most courts considering the issue have held a municipality may be an aggrieved person within the meaning of statutes authorizing such a person to institute proceedings to review a decision of a board of adjustment.... We agree with this authority and believe a municipality has a vested interest in requiring compliance with its land use decisions."

City of Reno v. Harris, 111 Nev. 672, 895 P.2d 663, 666 (1995).

The Supreme Court of Rhode Island has considered whether a municipality has standing to challenge a zoning board's decision. The court, construing a statute substantially similar to Virginia Code § 15.2-2314, concluded that a municipality can be an aggrieved person so as to have standing because "`aggrievement' in the public sense occurs whenever there is a threat to the very real and legitimate interest which the general public has in the preservation and maintenance of the integrity of the zoning laws." City of East Providence v. Shell Oil Co., 110 R.I. 138, 290 A.2d 915, 917-18 (1972).

The Court of Appeals of Idaho has also considered whether a municipality is an aggrieved person who has standing to appeal a decision of its own zoning appeals board. The court stated:

"Although Idaho Code § 67-5215 does not specifically authorize a municipality's right to appeal a decision of its own Zoning Appeals Board, a municipality or town may be deemed to be an `aggrieved person' within the meaning of that section. . . . Clearly the city, being interested in the maintenance and development of the city and the property contained therein, has an interest in the real property which may be
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